Former solicitor general Paul Clement was in the Supreme Court on Monday arguing for Texas in its redistricting case. The case demonstrates clearly how Section 5 — the “emergency” provision of the 1965 Voting Rights Act — has outlived its time.
To summarize a very complicated situation: Texas is one of only nine states covered in whole by Section 5. As such, it cannot implement any changes in its voting laws (including redistricting) without getting either administrative approval from the Department of Justice or judicial approval from a District of Columbia federal court. Given the bias and politics driving the Holder Justice Department, Texas made the smart move of filing suit in federal court in D.C. to get preclearance of its new congressional and state legislative redistricting plans. Section 5 requires only that the new plans maintain the status quo — i.e., there can be no reduction in the number of majority-minority voting districts in the state. The D.C. court trial on the preclearance issue is scheduled for January 17.
Meanwhile, a number of Hispanic and Democratic groups filed lawsuits in federal court in Texas claiming violations of Section 2 of the Voting Rights Act because the state did not maximize the number of new districts in which blacks and Hispanics constitute a majority of voters. Section 2 prohibits “denial or abridgment of the right” to vote on account of race or color or being a member of a language minority. It is the section of the VRA used to bring vote dilution lawsuits. Section 2 specifically states that it does not establish “a right to have members of a protected class elected in numbers equal to their proportion in the population.” Yet that is the exact claim being made in the Texas lawsuits. Hispanics in particular are claiming that most or all of the new legislative districts — particularly the four new congressional seats — should be majority-Hispanic districts.
Without finding any Section 2 violation or even the likelihood that the plaintiffs’ challenges would succeed, a panel of Texas judges decided that the new district maps could not be used because they had not been precleared. The judges than drew up new interim maps for the upcoming elections, essentially ignoring the political decisions of Texas voters as expressed through their elected legislators. Acting as a self-appointed super legislature, the judges also ignored Texas redistricting criteria, relying instead on their own notion of sound public policy and “the collective public good.”
The judges assumed that all of the unproven allegations made by the plaintiffs were true, producing what the dissenting judge called “a runaway plan that imposes an extreme redistricting scheme . . . untethered to the applicable case law.” This was a fundamental violation of judicial authority and discretion. The judges’ only role should be to remedy likely statutory or constitutional violations, not draw up their ideal of optimum district boundaries. The resulting maps favor the Democratic party over the Republican party. Texas appealed the Texas court’s order to use these interim maps and got a stay from the Supreme Court — Clement was there on Monday to argue that Texas should not have to use them.
Justice Sonia Sotomayor’s interrogation made it clear that she sides 100 percent with, as she put it, “the Latinos” in the suit. She acted more like a counsel to LULAC than an impartial justice. She also got the law fundamentally wrong, saying that the VRA bars the use of an unprecleared plan. In fact, regulations issued by the Justice Department, 28 C.F.R. §51.18, specifically contemplate a court ordering the use of an unprecleared plan in an emergency. A federal court in Florida did just that in 1996 when it authorized the use of an unprecleared plan “on an emergency interim basis for the 1996 congressional elections.” Johnson v. Mortham, 926 F.Supp. 1460, 1494 (N.D. Fla. 1996).
As the court made clear in the Florida case, the state still had to get preclearance for future use of the plan, which is in accordance with the Justice Department regulation. It states that: “A Federal court’s authorization of the emergency interim use without preclearance of a voting change does not exempt from section 5 review any use of the practice not explicitly authorized by the court.”
So the Texas court could have easily ordered the use of the unprecleared plans for the upcoming election pending preclearance from the D.C. court over the use of the plans in any subsequent elections. The situation faced by Texas certainly fits the definition of an emergency. This would have been the correct outcome given the fact that the Texas court had made no actual finding that the maps violated the Voting Rights Act or that the plaintiffs’ allegations are credible.
But at the oral arguments, the justices were obviously frustrated at the timing problem they face. They must decide quickly whether Texas should be required to use the unjustified interim maps drawn up by the Texas court, to use the unprecleared legislative maps, or to wait until the D.C. court conducts its trial and comes to a decision sometime in mid-February. With a primary already moved back from March 6 to April 3, this provides almost none of the lead time necessary for candidate qualifying, composing, and ordering ballots by local election officials, and mailing out overseas ballots to American military personnel in time for them to vote in the primary election.
Of course, if Texas did not have to comply with the outmoded requirements of Section 5, there would be no problem in the first place. The legislatively-drawn maps would be used unless and until the Texas court found that they violated the law. Just another reason why, the next time the Supremes are faced with deciding the continued constitutionality of Section 5, they should strike it down.